Georgia Criminal Law News

PRE &POST CONVICTION LAW PUBLICATION

Trial court was required to give defense counsel an opportunity to review a jury note and to suggest appropriate responses – failure to do so constituted a violation of defendant’s right to counsel.

On appeal, Dowda contended the trial court erred by failing to allow defense counsel an opportunity to read and respond to a note the jury sent out during deliberations that clearly showed the jury was confused and had not reached a unanimous verdict.

Both the Supreme Court and Court of Appeals have recognized that the failure to inform counsel of the contents of a jury note and to seek comment or input in the formulation of the court’s response constitutes a violation of a defendant’s right to counsel. The Georgia Supreme Court requires trial courts to 1) have jurors’ communications submitted to the court in writing, 2) mark the written communications as a court exhibit in the presence of counsel, 3) afford counsel a full opportunity to suggest an appropriate response, and 4) make counsel aware of the substance of the trial court’s intended response in order that counsel may seek whatever modifications counsel deems

appropriate before the jury is exposed to the instruction. Here, given the Jury’s obvious confusion, the failure to provide counsel with an opportunity to review the jury note and know its full contents and then discuss the court’s response to the note was not harmless error as it deprived defendant of his right to counsel.

1) The trial court must charge on the essential elements of an offense. 2) Trial counsel may be ineffective if she seriously mishandles a viable defense. 3) Trial counsel may be ineffective for failing to investigate a viable mental health defense when presented with compelling documentation of a client’s mental health history.

Shaw, a veteran with mental health issues, was at a Waffle House with his wife and sister. After making some noise in the bathroom, Shaw sat down at the victim’s table. Shaw did not know the victim and was not invited to sit at his table. The victim, alarmed by the loud stranger at his table, unfolded a knife on his lap. The victim’s and Shaw’s conversation became heated. Shaw began biting the victim’s face, punching the victim’s head into the floor, and generally delivering a severe beating to the victim. Shaw was convicted of aggravated battery and aggravated assault. The Court makes a lengthy showing of Shaw’s trial counsel’s bungling of the investigation of and possible presentation of Shaw’s viable mental health defense. Shaw, a veteran, suffers from Tourette’s syndrome, OCD, and PTSD. A year prior to trial, trial counsel was made aware of Shaw’s mental health issues and provided contact information for his treating psychiatrist. Shaw and his family thought that his mental health would play a role in his defense. Trial counsel spoke to the treating psychiatrist for a few minutes and, on the eve of trial, was undecided about whether to call him, did no research into the consequences of a not guilty by reason of insanity defense, and did not think that Shaw was insane but did not consult with a mental health professional regarding his lay conclusions. At trial, Shaw, his wife, and sister testified that Shaw suffered from Tourette’s syndrome, OCD, and PTSD. Because trial counsel failed to provide the necessary notice regarding use of an expert, he was precluded from calling Shaw’s treating psychiatrist. In closing, trial counsel, after describing some of Shaw’s mental health issues argued “[t]here’s a difference between being sick and being a criminal. You’ve got to decide which one Mr. Shaw is. Is he sick or is he a criminal?”

The Court reversed on a finding of ineffective assistance of counsel. The Court finds deficient performance. Citing Martin v. Barrett, 279 Ga. 593, 594 (2005), the Court notes, “[W]here a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance.” Alternatively, trial counsel’s attempted delusional compulsion defense was a complete failure. As to the harm prong of Strickland, the

Court finds a reasonable probability that a jury would have accepted a proper presentation of mental health defense. In support of this idea, the Court notes that at Shaw’s motion for new trial he presented testimony from a psychologist who specialized in the treatment of veterans, who testified that much of Shaw’s behavior at the Waffle House was explained by his PTSD, OCD, and Tourette’s syndrome.

The Board of Pardons and Paroles’ decision to grant a pardon is not reviewable by the courts, though the courts may interpret the scope of the pardon based on the Board’s pardoning language.

Davis entered a guilty plea to aggravated sodomy and received a 10-year sentence with 2 to serve. After getting out of prison, he was subject to the provisions of the sex offender registry. After completing probation, he applied for and was granted a pardon, which stated, in part, “the Board, without implying innocence, hereby unconditionally pardons [Davis], and it is hereby ORDERED that all disabilities under Georgia law resulting from the above stated conviction and sentence . . . are hereby removed . . . .” After receiving the pardon, Davis moved without registering with his local sheriff. The State charged Davis with failure to register as a sex offender. Davis filed a motion for a general demurrer, which the trial court denied.

The Court notes that the separation of powers doctrine prohibits it from reviewing the appropriateness of the Board’s grant of pardon to Davis. This is so even though the Board did not contact the District Attorney’s office or the victim in Davis’s case. The only issue is whether the pardon relieved Davis of his duty to register as a sex offender. The Court finds that registering on the sexual offender registry, though properly classified as a regulation, is a legal disability. Thus, the pardon’s broad language, which relieved Davis of all legal disabilities associated with his conviction, relieves Davis of his duty to register.

INEFFECTIVE ASSISTANCE OF COUNSEL

Tran v. The State, Georgia Court of Appeals, A16A1654 (March 8, 2017)

Counsel opening the door to evidence that directly contradicts the theory of defense and failure to object to inappropriate impeachment of a testifying defendant can be sufficient to make out an ineffective assistance of counsel claim, however, the analysis will turn on whether the Court of Appeals, upon a de novo review of the totality of the evidence, finds the evidence “thin” or “overwhelming.”

The evidence presented in this case was that at approximately 1:00 a.m. on February 6, 2013, two men committed an armed robbery with a gun at a karaoke club in DeKalb County. During this robbery, one of the robbers forced a female club manager onto the ground and while she was lying there, one of the robbers put his finger in her vagina. The robbers took a debit card, some cash, a nearly full case of Johnny Walker Black Scotch, and two or three bottles of Crown Royal Special Reserve. Tran was arrested shortly after the robbery when his car was pulled over based on the description given by the victims at the club of the robbers’ car. There was a gun, a case of Black Label whiskey and a bottle of Crown Royal in the car. The passenger ran and was not captured. Tran denied participating in the robbery. Tran testified that he was in the parking lot of the club when an armed man jumped into his car and forced him

to drive from the scene. Tran testified that he did not know the man that jumped into his car and forced him to drive away.

The Court of Appeals found trial counsel’s performance deficient in two key respects. First, a detective testified that a City of Riverdale database did not contain any records showing that Tran had ever been the victim of a robbery. This was important because Tran asserted that the reason he did not tell the police what happened to him was that he had previously had a bad experience with law enforcement when he was the victim of a robbery at a pool hall in Riverdale. During Tran’s testimony the prosecutor asked Tran if it would surprise him that the detective had “run his name” and no record of Tran being the victim of a robbery came up. Defense counsel did not object to this question. The failure to object was deemed deficient performance because the impeachment was improper—it asked a question that called for information not in the witness’ personal knowledge. Second, the Court found trial counsel’s performance deficient because during cross examination of the detective, trial counsel asked the detective if he had been provided an opportunity to interrogate Tran. This led to a back and forth during which the detective testified that he understood that Tran wanted to speak to law enforcement to tell them that he did in fact know the man who was his passenger and provide the police with his identity and more details about the crime. The detective’s testimony was critical because it contradicted Tran’s defense that he did not know the identity of the man who jumped in his car and that he was not involved in the crime. Trial counsel opened the door to this testimony. The Court of Appeals considered the combined effect of trial counsel’s errors and the totality of the evidence presented (“In close cases, where the evidence presented by the state is thin, concluded that Tran’s case was in fact based on thin evidence. The Court of Appeals describes not only the two instances of deficient performance by trial counsel but also the prosecutor’s extensive comments on Tran’s invocation of the right to an attorney and his right to remain silent as reasons to conclude that where, as here, the evidence of guilt was not overwhelming, Tran had successfully shown the required prejudice.

CONFRONTATION CLAUSEState v. Jefferson Georgia Supreme Court

S17A1085 (October 30, 2017)

Even though Georgia’s gang statute allows the State to introduce the previous convictions of non-parties who are not witnesses, it violates the Confrontation Clause to admit such evidence.

The State gave notice under the proper statute that it would introduce the criminal convictions of one defendant and three other alleged gang members who were not defendants or witnesses in the case. The defendants objected and the trial court excluded this evidence.

The Confrontation Clause guarantees the accused the right to confront the witnesses against them.

Where there was not a substantive change in the medical diagnosis exception to the hearsay statute when the evidence code was overhauled, prior court interpretations still have precedential value; and statements identifying a suspect to a

crime are not included in the exception, and is therefore excluded as hearsay.

Following an indictment for several child molestation charges, the alleged victim (the Defendant’s stepdaughter) and her mother left Cobb County, and the District Attorney’s subsequent efforts to locate them was unsuccessful. The State therefore filed a motion in Limine seeking an order that would allow prosecutors to introduce into evidence the testimony of two of the child’s treating physicians as to statements made to the doctors by the child’s mother and in which the mother related both the child’s allegations of abuse and the fact that the child had identified the defendant as her abuser. Following a hearing at which both physicians testified, the trial court granted that motion in part and denied it in part. The State appealed, asserting that the trial court erred when it found that those portions of the mother’s statements that identified the defendant as the perpetrator of the alleged crimes did not fall within the hearsay exception found in OCGA § 24–8–803 (4): statements made for medical diagnosis or treatment.

The identity of a suspect is not necessary in making a medical diagnosis or for a medical professional to treat a patient. Therefore, it does not have the mark of trustworthiness attached to statement necessary for diagnosis or treatment.

FEDERAL HABEAS

Grant v. Swarthout, 862 F.3d 914 (9 Cir.2017)

Delay by prison officials in providing petitioner with requested certificate for in forma pauperis filing was an extraordinary circumstance justifying equitable tolling, and petitioner was not required to show he acted diligently for portion of the limitations period preceding the extraordinary circumstance.

Petitioner’s conviction became final on direct appeal on October 5, 2009, thereby commencing AEDPA’s one-year statute of limitations. On September 25, 2010, 354 days later, petitioner filed a petition for state post- conviction relief, tolling the limitations period until November 16, 2011, when the petition was denied. Petitioner received notice that his petition had been denied five days later, on November 21, 2011, with seven days remaining on the limitations period. On the same day, petitioner requested a prison account certificate from the prison trust office, something that was required in order for petitioner to file a federal habeas petition in forma pauperis. The certificate was issued December 2, 2011, and petitioner filed his federal petition that same day.

The question for the Ninth Circuit to decide was whether the period of time between November 21, when petitioner requested the prison account certificate, and December 19, the date on which he received it, was equitably tolled. The answer depended on “whether equitable tolling may be denied because a court decides that the prisoner acted unreasonably by failing to work diligently on his case throughout the entire portion of the one-year statute-of- limitations period that preceded the occurrence of the ‘extraordinary circumstance’?” (Emphasis added.)

The court concluded that it may not be denied, observing that “[n]o opinion of this court or of the Supreme Court has ever upheld the denial of equitable tolling to a prisoner on the ground that he had not used the portion of the one-year statute-of-limitations period that preceded the event justifying tolling in a reasonable manner.” Grant v. Swarthout, 862

The Ninth Circuit concluded both that petitioner experienced an extraordinary circumstance and that he acted with reasonable diligence. With regard to the former, the court noted that petitioner was entirely dependent on prison officials to provide him with the requested document and could not file his petition for habeas corpus without it. “Where a prisoner is dependent on prison officials to complete a task necessary to file a federal habeas petition and the staff fails to do so promptly, this constitutes an extraordinary circumstance.” Grant, 862 F.3d at 926 (citing Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (“Here, as an incarcerated pro se litigant, Miles depended on prison authorities to draw on his trust account and to prepare a check for the filing fee. He further relied on these same authorities to mail his check and petition to the district court. Once Miles made his request, any delay on the part of prison officials in complying with Miles’ instructions was not within Miles’ control.”)). The court also found petitioner acted diligently by twice checking on the status of his prison account certificate between November 21 and December 19. Finally, the court had no trouble finding that the prison officials’ delay was the “cause” of the federal habeas petition being denied as untimely. Grant, 862 F.3d at 924 (9th Cir. 2017); see Brian R. Means, Postconviction Remedies, § 25:36 (West 2017 ed.); Brian R. Means, Federal Habeas Manual, §§ 9A:86, 9A:87, 9A:108 (West 2017 ed.); Brian R. Means, Introduction to Habeas Corpus, Chapter Eleven (2018 ed.).

Ninth Circuit case law is unclear regarding whether a petitioner may need to prove that he was diligent after the extraordinary circumstance ended. In Gibbs, 767 F.3d at 879, the court adopted a “stop clock” approach for equitable tolling of claims. Under a pure stop- clock approach, “[t]here is no need to show diligence after the extraordinary circumstances have ended.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015). But in Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), the court stated that a petitioner is required to show diligence through the time of filing, even after the extraordinary circumstance dissolved. And more recently, the Ninth Circuit stated that “[o]rdinarily, a petitioner must act with reasonable diligence both before and after receiving delayed notice that the state denied his habeas petition.” Fue v. Biter, 842 F.3d 650, 656 (9th Cir. 2016) (en banc) (citation omitted). Thus, under current Ninth Circuit law, a federal court must “apply both the diligence-through- filing requirement imposed by Spitsyn and the stop-clock approach adopted in Gibbs.” Luna, 784 F.3d at 651-52. The court in Grant did not need to resolve the question because the petitioner was diligent after the extraordinary circumstance had ended. Grant, 862 F.3d at 924-25 (“Although there is considerable confusion in our case law regarding whether a petitioner may need to prove that he was diligent after an extraordinary circumstance has ended, we need not resolve that question in this case because it is obvious that Grant was diligent after the extraordinary circumstance had ended”).

SUCCESSIVE PETITIONS

1) Petitioner made a prima facie showing that his intellectual deficiency claim was “previously unavailable” to him, even though Atkins v. Virginia was decided nearly two years before petitioner filed his first petition; at that time, petitioner believed his IQ score was above the benchmark for the sub average intellectual functioning prong of Atkins claim, and it was not until years later that evidence came to light indicating his IQ was below benchmark.

IN RE CATHEY 857 F.3d 221 (5 Cir. 2017)

Petitioner sought permission to file a second or successive petition to allege a claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), on the ground that the decision fell within the “new rule” provision of 28 U.S.C. § 2244(b)(2)(A).

To satisfy § 2244(b)(2)(A), petitioner was required to make a prima facie showing that: (1) his Atkins claim was not “presented in a prior application”; (2) his Atkins claim relied “on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable”; and (3) his Atkins claim had merit. 28 U.S.C. § 2244(b)(2)(A).

It was undisputed that the Atkins claim was not presented in petitioner’s prior federal habeas petition; thus, the first requirement was satisfied. And with regard to the second requirement, it was undisputed that Atkins created a new rule of constitutional law made retroactive by the Supreme Court; what was disputed was whether the Atkins claim was “previously unavailable.” Atkins was decided on June 20, 2002, and petitioner filed his federal petition on April 2, 2004, nearly two years later.

Petitioner argued that two circumstances rendered Atkins practically unavailable. The first was that the Flynn Effect was not considered by courts until at least 2005. (The Flynn Effect “is a phenomenon positing that, over time, standardized IQ test scores tend to increase with the age of the test without a corresponding increase in actual intelligence in the general population.” Wiley v. Epps, 625 F.3d 199, 203 n.1 (5th Cir. 2010).) Petitioner filed a second state petition.

The second state petition involved the defendant’s request for appointment of counsel. Brown concluded that because the first issue involved a right that if violated requires automatic reversal, the ultimate decision was also subject to automatic reversal if erroneous. See also U.S. v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010).) But Judge Nguyen opined that the court in Brown had conflated two distinct rights—the right to counsel of choice and the right to effective counsel—thereby forging structural error from harmless mistake. Instead, she stated, a court should treat motions to substitute retained counsel with appointed counsel under the standard for appointing new counsel. In any event, she added, regardless of the logic of Brown, it made no sense to apply it when the substitution request was, as here, for purely financial reasons. Yepiz, 844 F.3d at 1084 (Nguyen, J., dissenting); compare U.S. v. Jimenez-Antunez, 820 F.3d 1267, 1271 (11th Cir. 2016) (“We agree with those courts that have held that a defendant may discharge his retained counsel without regard to whether he will later request appointed counsel,” and an error in this regard is structural) (citing cases), with U.S. v. Mota-Santana, 391 F.3d 42, 47 (1st Cir. 2004) (good cause standard applies t0 motion to replace retained counsel with substitute counsel)

Claim that counsel was ineffective for failing to file a motion to suppress was not barred by Tollett v. Henderson where evidence found during the search was critical to the prosecution’s case, preventing petitioner from making an informed choice on whether to plead guilty. Mahrt v. Beard, 849 F.3d 1164, 1170-72 (9th Cir. 2017)

Sheriff Deputies were dispatched to a residence after receiving a report of a man and woman arguing over a gun. The residence was owned by the mother of petitioner’s girlfriend, Tracy. Petitioner was living in a garage on the property. As deputies approached the property, petitioner walked out and met them at the front gate. He told them that Tracy had left before the deputies arrived. Tracy’s mother told deputies the same thing. Deputies then conducted what they called a “protective sweep” of petitioner’s room in the garage. The deputies believed it was justified due to the report of possible domestic violence and the concern that petitioner might be hiding a victim. Although deputies did not find anyone inside, they did observe firearm ammunition. After deputies learned that petitioner had a prior felony conviction, they arrested him for being a felon in possession of ammunition. Petitioner pleaded guilty and received a six-year sentence.

Later, petitioner filed two state habeas petitions alleging that the warrantless search of his room violated the Fourth Amendment and that defense counsel provided ineffective assistance by failing to move to suppress the evidence discovered during the search. The petitions were summarily denied on the merits. Petitioner then filed a federal habeas petition, again arguing that he received ineffective assistance of counsel. The district court granted the petition and the Ninth Circuit reversed.

The state argued on appeal that petitioner’s ineffective-assistance-of-counsel claim was not cognizable on federal habeas review because it rested upon an alleged constitutional violation that preceded his guilty plea. The Court in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), held that “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” But the Court also stated that the rule is not without exception. In that regard, a petitioner may attack the voluntary and intelligent character of a guilty plea based on pre-plea ineffective assistance of counsel “by showing that the advice he received from counsel was not within the . . . range of competence demanded of attorneys in criminal

The Ninth Circuit disagreed with the states argument and stated that “[t]he Tollett exception is not as narrow as the State contends.” The court explained that “Tollett, properly understood, provides that although freestanding constitutional claims are unavailable to habeas petitioners who plead guilty, claims of pre-plea ineffective assistance of counsel are cognizable on federal habeas review when the action, or inaction, of counsel prevents petitioner from making an informed choice whether to plead.” (Emphasis added.) Petitioner’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, fell squarely within the Tollett exception:

The entire case against petitioner depended on its ability to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched [petitioner’s] home, counsel’s failure to move to suppress the fruits of that search prevented [petitioner] from making the informed choice to which he was entitled. Thus, petitioner’s ineffective assistance of counsel claim was not barred by Tollett.

Ninth Circuit concluded that trial counsel should have moved to suppress the firearms and ammunition. The court explained that “[t]here was at least a chance such a motion would have succeeded.” But that was not the end of the matter. Because the state courts had adjudicated the claim on the merits, § 2254(d)(1)’s deference standard applied, and because the state courts had not explained their reasoning, the federal habeas court was “obliged to supply the reasons those courts could have had for their denials.” The Ninth Circuit stated that it would have been reasonable for the state courts to have concluded that a motion to suppress, if brought, would likely have been denied. The state courts could have reasonably believed that the search was justified under the “emergency aid” exception to the warrant requirement. “It thus would not have been unreasonable for the state courts to regard the possibility of a victim inside [petitioner’s] room as an exigent circumstance justifying the warrantless search of the room.” Mahrt v. Beard, 849 F.3d 1164, 1170-72 (9th Cir. 2017)

The Information here has been gathered from Post- Conviction Remedies newsletter and case law review of Brian Mean. These cases are cited in part. Should you consider a case applicable to your situation you should contact our office for a free evaluation.

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